### IN THE SUPREME COURT OF IOWA

No. 0 8

– 1413
Filed June 5 , 2009

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD , Complainant ,

vs. VAN PLUMB , Respondent

.
On review of the report of the Grievance Commission.

Respondent appeals from a report of t he Iowa Supreme Court
Grievance C ommission recommending respondent’s license to practice
law be suspended

. LICENSE SUSPENDED.

Charles L. Harrington and David Grace, Des Moines , for complainant

.

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines , for respondent

.2

HECHT , Justice. The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, Van Plumb, violated several ethical rules by divulging a
cli ent’s secrets or conf idences, neglecting clients’ case s , attempting to persuade a client to withdraw an ethical complaint, failing to respond to a complaint filed by the board, failing to provide responses to the board’s discovery requests, failing to provide clients with an a ccounting for unearned retainers, failing to deposit unearned fees in a trust account, engaging in dishonesty or misrepresentation in attempting to cover up his failure to file a civil action within the statute of limitations , and misappropriation of funds from a trust account

. A division of the Grievance Commission of the Supreme Court of Iowa found Plumb violated numerous ethical rules and recommended we suspend his license to practice law for a period of twelve months. Plumb filed a notice of appeal fr om the commission’s report. See Iowa Ct. R. 35.11 (1)

. Having given respectful consideration to the commission’s findings of fact, conclusions of law, and recommendation, we find the respondent
violated numerous ethical rules. We therefore suspend his li cense to practice law indefinitely with no possibility of reinstatement for eighteen
months.
I. Scope and Standard s of Review.
We review attorney disciplinary proceedings de novo . Iowa Ct. R.
35 .10(1). The board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo , 710 N.W.2d 226, 230 (Iowa 2006). “ This burden is ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Id . (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett , 674 N.W.2d 139,3 142 (Iowa 2004)). We give weight to the c ommission’s findings , especially when considering th e credibility of witnesses, but we are not bound by those findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath , 713
N.W .2d 682, 695 (Iowa 2006). “Once misconduct is proven, we ‘may impose a lesser or greater sanction than the discipline recommend ed by the grievance commission.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Conrad , 723 N.W.2d 791, 792 (Iowa 2006) ( quoting Lett , 674 N.W.2d at 142 ).
II. Factual Findings
. The board’s complaint alleged Plumb committed ethical violations in the representation of four sep arate clients

. We will address them seriatim in the same order they were addressed in the commission’s findings, conclusions of law, and recommendation.
A. McR ae Matter. Plumb represented McRae on a domestic
abuse charge wh ich was concluded with the entry of a deferred judgment. While subsequently representing a different party in
contentious comm ercial litigation, Plumb deposed McRae who was listed as a witness by a party

- opponent. Plumb posed questions during an Augus t 14, 2002 deposition requesting McR ae to d isclose the nature of
the criminal charge and the substance of certain statements made by
McR ae to Plumb in the course of their attorney

- client relationship. Although McR ae asserted the attorney

- client privilege, Plumb persisted in the line of questioning

. The board asserted Plumb’s conduct duri ng the deposition violated DR 4

– 101(B) (revealing confidences or secrets of client), DR 7

– 102(A)(1) (taking action on behalf of a client when it is obvious such action would serve merely to harass or maliciously injure4 another), and DR 1

– 10 2(A)(1), (5), and (6) (violating a disciplinary rule)

. 1

A client’s “secret s ” includes information gained by an attorney in an attorney

- client relationship that “would be embarrassing” or that would “be likely to be detrimenta l to the client.” DR 4

– 101(A). Even if it was not already apparent to Plumb that McRae considered his domestic abuse history as a distinct embarrassment, this became clear to him
when McRae decl ined to answer because he believed the questions inquired about a matter protected by the attorney

- c lient privilege. Notwithstanding McRae’s initial refusal on the ground of privilege to answer the question posed, Plumb persisted and expressly inquired as to
the substance of a conversation he claimed to have had with McRae about the consequences of any plea bargain in the criminal case. We find Plumb’s conduct during the deposition crossed the line of appropriate zealous representation in the commercial litigation, and
constituted a revelation of a former cli ent’s secret in violation of DR 4

– 101(B)(1). We also find Plumb’s conduct during the deposition
constituted a violation of DR 1

– 102(A)(1) (violatio n of a disciplinary rule),
DR 1

– 102(A)(5) (conduct prejudicial to the admin istration of justice), and
DR 1

– 102(A)(6) (conduct adversely reflecting on fit ness to practice law). The commission found Plumb’s conduct during the deposition was properly characterized a s overzealous, but not so egregious as to require a sanction. Plumb contends his questions did not reveal any secret or confidence imparted to him by McRae, and claims the questions posed during the deposition inquire d only as to matter s that were already of public record in McRae’s criminal case.

1 Most of the conduct at issue in this case occurred prior to July 1, 2005. As to such conduct, the board charged Plumb with violation of rules then extant in the Iowa Code of Professional Responsibility for Lawyers. Where Plumb’s conduct after July 1, 200 5 forms the basis of claimed ethical violations, the board has alleged breach of rules stated in the Iowa Rules of Professional Conduct.5

B. Babcock Matter. Plumb agreed to represent Babcock , who
was incarcerated at th e correctional f acility in Newton , in a civil action for the sum of $3 000. Plumb received the advance fee payment from Babcock, but did not deposit it in a trust account. Babcock later filed a complaint with the board after Plumb failed to respond to several wri tten inquiries between March and October of 2004

. Plumb notified Babcock
of his intention to withdraw as counsel. Plumb and Babcock thereafter discussed the matter by telephone and reconciled th eir differences.
Plumb drafted a letter for Babcock’s signa ture withdrawing the complaint. The reconciliation was short

- lived, however, for soon
thereaf ter Babcock refiled the ethics complaint against Plumb , and requested an accounting and a refund of the unearned attorney fee

. Plumb ignored for several months the request for an accounting. When
the b oard requested information from Plumb about the complaint , he did
not respond.
The b oard charged Plumb with neglecting Babcock’s case in
violation of DR 6

– 101(A)(3) , improperly attempting to influence Babcock to withdraw the ethical complaint in violation of DR 1

– 102(A) , failing to
respo nd to the b oard’s inquiry in v iolation of DR 1

– 102(A)(5), (6), failing to deposit unearned fees in a trust account in violation of DR 9

– 102(B) , and failing to refund unearned fees in violation of DR 2

– 110(A)(3) and
DR 9

– 102(B)(4)

. We find t he communicat ion problems between Plumb and Babcock

were attributable , at least in significant part, to the circumstances of
Babcock’s incarceration. Plumb communicated with Babcock for a time through a person holding Babcock’s power of attorney. When the
relationshi p between Babcock and the person holding that power broke down, Plumb began communicating with Babcock’s mother

. We find the6 board failed to prove by a convincing preponderance of the evidence that Plumb breached ethical rules in failing to communicate with Babcock. Babcock asserted, and the board claimed, that Plumb’s neglect of Babcock’s case led to the repossession of Babco ck’s vehicle and tardiness in providing responses to discovery requests propounded to Babcock. Although Plumb did fail to prevent the repossession of Babcock’s vehicle,
we find this was a consequence of Babcock’s failure to make his monthly loan payments, and not the result of n eglect on the part of Plumb. The delay of Babcock’s responses to discovery was, in significant part, attributable to the uncertainties resulting from the filing of the ethical complaint and Plumb’s motion to withdraw as Babcock’s c ounsel

. We find the board failed to prove Plumb’s conduct in these particulars constituted neglect of Babcock’s defense. Although Plumb’s draft ing of Babcock’s letter to the board requesting dismissal of the ethics complaint is a circumstance that
prov okes suspicion, w e find persuasive Plumb’s explanation that the letter to the board was drafted at Babcock’s request after the telephonic
reconciliation had occurred. Babcock conceded in his testimony that he did not feel pressured by Plumb to withdraw th e complaint. Upon our de novo review, we find the board failed to prove Plumb’s conduct constituted an improper attempt to dissuade Babcock from maintaining the ethics complaint or an effort to persuade Babcock from cooperating in the board’s investigatio n of the matter. Plumb concedes he failed to respond to the board’s i nquiry in this
matter . We therefore find he violated DR 1

– 102(A)(5) (conduct prejudicial to the administration of justice) and DR 1

– 102(A)(6) (conduct adversely reflecting on fitness to practice law). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks , 759 N.W.2d 328, 331 (Iowa 2009).7

We have characteriz ed advance fee payments as “special retainers.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Piazza , 756 N.W.2d 690, 697 (Iowa 2 008); Iowa Supreme Ct. Bd. of Prof ’l Ethics & Conduct v. Apland , 577 N.W.2d 50, 55

– 57 (Iowa 1998). “ ‘ [ F]ee advances are not earned when paid, and therefore must be deposited into the trust account. ’ ” Apland , 577 N.W.2d at 5 5 (citation omitted) (emphasis added). Such “[f]unds remain the property of the client until the attorney earns them.”
Id. ; accord Iowa Supreme Ct. Att’ y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 408 (Iowa 2005) (“ all advance fee payments other than general retainer fee payments ar e refundable and must be placed in a
client trust account” )

. 2

C. Nelson M atter. Nelson was a party to a dissolution of marriage proceeding in Dickinson County. After becoming dissatisfied
with his counsel, Nelson discharged him and requested other attorneys to undertake the representation. T wo other attorneys declined Nelson’s
entreaties before Plumb agreed to ha ndle the matter for a fee of $7 500

. Nelson paid that amount in two installments , but Plumb did not deposit either payment in a trust account. Soon after the professional We find Plumb violated DR 9

– 102(A ) when he
failed to deposit Babcock’s $3 000 advance fee payment in a trust
account

. When Babcock requested a refund of the unearned portion of
the fee, Plumb failed for several months to do so. This failure to promptly refun d the unearned portion of the advance fee constituted a
violation of several rules including DR 9

– 102(B)(4) (lawyer’s duty to promptly pay or deliver client’s funds to client as requested)

.

2 These requirements are incorporated in the new Iowa Rules of Professional Conduct and the client trust account rule s. See Iowa R. Prof'l Conduct 32:1.15(c) (“A lawyer shall deposit in a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.”); Iowa Ct. R. 45.7(1), (3) ( de fining advance fees and requiring deposit of advance fee into the client trust account).8 relationship commenc ed, Nelson requested Plumb to also represent him
in a real estate dispute. Plumb agreed to handle this matter as well, and received from Nelson an advance fee payment of $750. The attorney

- client relationship between Plumb and Nelson soon
soured. It w as characterized by profound mutual dissatisfaction which ultimately led to its termination

. Nelson claims he requested a refund of
the unearned fee s , but Plumb denies such a request was received. Following an investigation of Nelson’s complaint , the boa rd charg ed
Plumb with violation of DR 9

– 102(B)(4) (failure to promptly refund the unearned portion of the fee when requested), DR 2

– 110(A)(3) (same), a nd
DR 9

– 102 (failure to deposit unearned fees in a trust account). Plumb
conte nded his failure to deposi t Nelson ’s initial payment in a trust account was justified because he had already earned t his sum, when it

was paid , and claimed that he did account for the fees when the attorney

- client relationship ended

. Finding Nelson’s testimony incredible, the comm ission resolved the factual disputes in Plumb’s favor finding no ethical violations of counsel’s duty to deposit unearned fees in
a trust account , and no ethical violation of counsel’s duty to account for unearned fees when requested to do so. Granting ap propriate deference to the commission’s credibility findings, we adopt the commission’s findings as our own. Like the commission, we find Plumb vi olated DR 1

– 102(A)(5) and (6) when he failed to respond to the board’s requests for information pertaining to Nelson’s complaint. Such conduct is prejudicial to the administration of justice, and it adversely reflects on Nelson’s fitness to practice law. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rauch , 746 N.W.2d 262, 265

– 66 (Iowa 2008).9

D. Mambu M atter. Mambu was injured on March 7, 2002 in a motor vehicle crash. She communicated with the adjuster for the other driver’s insurer on several occasions before she hired Plumb to represent
her. A fter the applicable statute of limitations had expired, Plumb
drafted and back

- dated in Mambu’s presence a letter to the insurer ostensibly proposing to extend the limitations period by six months. Plumb subsequently filed suit on the claim, but the case was dismissed as untimely. Mambu retained new counsel, filed a professional negligence action against Plumb, and filed an ethics complaint with the
board. Following negotiations with Mambu’s new counsel, Plumb agreed
to settle the malpractice claim for the sum of $7 0 00

. On August 22, 2005, Plumb drew a check on his trust account in that amount and
forwarded it to Mambu’s counsel in furtherance of the settlement

. 3

3 Plumb testified he drew the check on his trust account because he believed he was counsel for himself, and that use of the trust account for this purpose was require d by the rule, and appropriate for preservation of a record of the settlement transaction. He did not explain why he thought a record of the transaction could not have been properly made using his business account. Sensing an appearance of impropriety upon receipt of the check drawn on Plumb’s trust account, Mambu’s counsel re turn ed it to Plumb.
Plumb responded to the return of the settlement check with a strange series of bank transactions. He drew a new settlement check on his
business account and delivered it to Mambu ’s counsel on September 2,
2005 . To cover that check drawn on the business account, Plumb drew
a check in the amount of $8 500 payable to himself on the trust account and deposited it in the business account on that same day

. At or about the same time, Pl umb claims to have planned to cover the check d rawn on the trust account by deposit ing a check in the same amount allegedly10

drawn on his wife ’s account on September 1, 2005 and payable to
Plumb

. When the board’s auditor subsequently appeared to examine
Pl umb’s trust account , it was disc losed that the check drawn on Plumb’s wife’s account was not deposited in the trust account until sixty days after Plumb withdrew a corresponding amount from the trust account and deposited it in his business account. No cl ient suffered a financial loss as a consequence of this series of trust account transactions. The board charged Plumb with violation s of DR 6

– 101(A)(3) (lawyer shall not neglect a client’s legal matter), DR 1

– 102(A) (4) (conduct involving dishonesty or mi srepresen tation in attempting to conceal his negligence by back

- dating a letter proposing an extension of the statute of limitations) , DR 1

– 102(A) (1), (5) , and (6) ( violation of disciplinary rule; conduct prejudicial to the administration of justice; condu ct adversely reflecting on fitness to practice), and rule 32:1.15 ( duty to keep client’s property separate) . The commission found Plumb violated each of these rules. Upon our de novo re view of the record, we agree. The evidence clearly establishes and we therefore find that Plumb neglected M ambu’s legal matter and attempted through deceit and misrepresentation to

concea l his negligence. We find the board also clearly proved Plumb’s mishandling of his trust account in connection with the Mambu
settlemen t transactions in violation of rule 32:1.15.
III. Sanction.
T he commission recommended Plumb’s license to practice law be suspended with no possibility of reinstatement for a period of one year. As we have noted, however, we may impose a lesser or greater sanction than the discipline recommended by the grievance commission. Conrad , 723 N.W.2d at 792 . In determining the appropriate sanction for attorney
misconduct :11 we consider the nature and extent of the respondent’s eth ical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances

. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen , 670 N.W.2d 161, 164 (Iowa 2003).
M isappropriation of a client’s funds by an attorney has, almost universally, resulted in license revocation

. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Anderson , 687 N.W.2d 587, 590 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell , 650 N.W.2d 648, 655 (Iowa 2002); Comm. o n Prof’l Ethics & Conduct v. Ottesen , 525 N.W.2d
86 5, 866 (Iowa 1994); Comm. o n Prof’l Ethics & Conduct v. Shepherd , 431 N.W.2d 342, 344 (Iowa 1988). Exceptions to this longstanding rule have
been noted in instances when the attorney had a colorable future claim
to the funds or did not take the funds for his own use. See, e.g. , Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Allen , 586 N.W.2d 383, 391 (I owa 1998); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hansel , 558 N.W.2d 186, 192 (Iowa 1997). Restitution or restoration of client
funds prio r to the discovery of the ir misappropriation does not preclude the imposition of revocation as a sanction

. Anderson , 687 N.W.2d at
590. The sanction of r evocation of the offending attorne y’s license has been imposed when the misappropriation wa s substantially smaller than $8 500

. See Comm. on Prof’l Ethics & Conduct v. Rowe , 225 N.W.2d 103, 104 (Iowa 1975) ( license revoked for depositing $1500 of client’s funds in attorney’s personal c hecking account). This case presents a very close question as to whether Plumb’s
license should be revoked for misappropriation of funds from a trust12

account . He drew a check on the trust account and attempted to use it to pay the settlement of Mambu’s tort claim. When this failed because Mambu’s counsel objected, Plumb sought to avoid the appearance of impropriety by forwarding to counsel a new check drawn on h is business account and “covering” it with a corresponding withdrawal from the trust
account and deposit to the business account . When this apparent irregul arity was to be discovered by the board’s auditor, Plumb sought to
cover his tracks b y claiming the withdrawal of $8 5 00 from the trust
account would have been “ covered ”

— but for his oversight

— by a deposit
to the trust account of a check in the same amount drawn on his wife’s
account

. 4

When combined with incidents of misrepresentation , neglect of a client’s legal matters will give rise to a le ngthy suspension from the practice of law. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth , 656 N.W.2d 93, 100 (Iowa 2002). The multiple violations proved by the board in this case are aggravated by Plumb’s substantial history of prior discipline. He has been publicly reprimanded on four previous We find this series of transactions and Plumb’s explanation of
them implausible at best. Nonetheless, we conclude the severe sanction of revocation should not be imposed in this case because Plumb had a
colorable future clai m to funds in the trust account in excess of $8500,
the amount withdrawn in furtherance of the Mambu settlement. Plumb’s

uncon troverted testimony establishes he had earned, but had not yet withdrawn from the trust account on September 2, 2005 , a ttorney fe e s in excess of $10,000

. Accordingly, we now consider what sanction less than revocation should be imposed under the circumstances of this case.

4 The board presented credible evidence t ending to establish there were insufficient funds in Plumb’s wife’s account on the day the check was allegedly drawn to cover the check which Plumb claims he intended, but neglected, to deposit in his trust account.13 occasions, and his license was suspended in 1999 for sixty days for neglect of multiple client matters, failure to deposit an advance fee in a trust account, and failure to respond to the board ’s complaint

. Plumb’s conduct in the several matters that are the subject of this case leads us to conclude the sanctions imposed for his past ethical lapses have been inadequate to induce conformity with our ethics rules, and a significant period of susp ension is required in this case.
I V
. Conclusion.
Plumb’s license to practice law in Iowa is suspended with no possibility of reinstatement for eighteen months . The suspension imposed applies to all facets of the practice of law as provided by Iowa
Cou rt Rule 35.12(3) and requires notification of clients as provided in Iowa Court Rule 35.21. Given the broad range of his ethical violations and his history of recidivism, Plumb shall take and pass the Multistate Professional Responsibility Examination pri or to making an application
for reinstatement of his license. Iowa Ct. R. 35.12(1). The costs of this
pr oceeding are taxed against Plumb pursuant to Iowa Court Rule 35.25(1).
LICENSE SUSPENDED. All justices concur except Appel, J., who takes no par t.